On May 16, 2013, the U.S. Court of Appeals for the D.C. Circuit held oral arguments in the case challenging the long-standing ban on federal government contractor political contributions, Wagner v. Federal Election Commission.  Last fall, a lower federal court upheld the ban, in section 441c of the Federal Election Campaign Act (“FECA”), finding that it does not violate the First and Fifth Amendment rights of government contractors.  That order was quickly appealed to the D.C. Circuit in November. 

A ruling is likely to be delayed, however, if the oral arguments held today are any indication.  In a last-minute round of activity in early May, the court ordered the plaintiffs and the Federal Election Commission (“FEC”) to submit briefs addressing whether the FECA requires that the case be heard en banc by the D.C. Circuit. 

Typically, cases at the federal appeals court level are heard by a panel of three judges, but an en banc hearing, which includes all of the judges of the court, may be used according to civil procedure rules or statutory requirements.  A provision of the FECA dating back to the 1940s, section 437h, states that the national committee of any political party, the FEC, or any voter in a Presidential election “may” file a claim that a portion of the FECA is unconstitutional in a district court, and the district court “immediately shall” certify the constitutional questions to a circuit court, which must then hear the matter en banc

Both parties agreed today that nothing in the language of the section or its history indicates that a circuit court must always hear these constitutional questions en banc.  However, the oral argument was consumed with this procedural issue, leaving no time for detailed arguments about the federal contractor ban itself.

In the coming weeks, the court may decide to send the case back to the district court to properly certify the constitutional issues for an en banc hearing, or the court may find that it can hear the case with a three judge panel and could potentially order additional arguments on the merits.  Under either scenario, it seems a decision on the constitutionality of the federal contractor contribution ban may be some time coming.